Digital Commons Network^™

Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz

Faculty Publications

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons

Faculty Publications

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.

This Article argues that while …

An Ntsb For Capital Punishment, Adam M. Gershowitz

Faculty Publications

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and …

Brief Intervention For Truant Youth Sexual Risk Behavior And Marijuana Use, Richard Dembo, Rhissa Briones-Robinson, Kimberly Barrett, Rocio Ungaro, Ken C. Winters, Steven Belenko, Lora M. Karas, Laura Gulledge, Jennifer Wareham

Faculty Publications

Substance use and sexual risk behaviors are common among adolescents, but research has focused attention on alcohol use. Much less is known about the relationship of marijuana use and sexual risk behavior among high-risk, especially truant, youths. We report interim findings from a NIDA-funded experimental, brief intervention (BI) study involving truant youths and their parents/guardians. Longitudinal data were analyzed to study (1) the relationships between the youths' marijuana use and sexual risk behavior and (2) the effects of a substance use BI on their marijuana use and sexual risk behavior. A growth model analysis for parallel processes was conducted to …

Juries, Social Norms, And Civil Justice, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article …

The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

Ubiquitous Privacy, Thomas P. Crocker

Faculty Publications

No abstract provided.

Health Equity For All: Sexual And Reproductive Health Needs And Access To Health Services For Adolescents 10–17 Engaged In Selling Sex In Asia Pacific, Brendan M. Conner, Ayesha Mago, Sarah Middleton-Lee

Faculty Publications

No abstract provided.

Abstract Risk And The Politics Of The Criminal Law, Brenner M. Fissell

Faculty Publications

Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk. Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk. What these defenses implicitly assume, though, is that the entity the individual must …

Decades Of Research Shows Adolescents Do Better With Community Service Rather Than Incarceration, Gary L. Hopkins, Duane C. Mcbride, Brent C. Featherston, Peter C. Gleason, Jacqueline Moreno

Faculty Publications

The purpose of this article is to share with the legal community some of what we as social science researchers have learned from our research and the research of others, regarding the health and education benefits of community service among adolescents. In other words, we will attempt to answer the question of whether there are benefits of performing community service to the individuals performing the service, and to describe what these benefits are.

Benefits To Adolescents Who Perform Community Service: A Perspective From Adolescent Health Researchers, Gary L. Hopkins, Duane C. Mcbride, Brent C. Featherston, Peter C. Gleason, Jacqueline Moreno

Faculty Publications

In the arenas of health, social scientists have learned over the past two decades that engagement in community service among adolescents often result in valuable outcomes. In other words, the persons being served are not the only ones benefiting from the experience, the providers of the service benefit as well. The purpose of this paper is to share with the legal community some of what we as social science researchers have learned from our research and also learned from the research of others in both health and education regarding benefits of community service among adolescents. We also will share with …

Brief Intervention For Truant Youth Sexual Risk Behavior And Alcohol Use: A Parallel Process Growth Model Analysis, Richard Dembo, Rhissa Briones-Robinson, Rocio Ungaro, Kimberly Barrett, Laura Gulledge, Ken C. Winters, Steven Belenko, Lora M. Karas, Jennifer Wareham

Faculty Publications

Truant youths frequently experience family problems, emotional/psychological issues, substance misuse, and delinquency. They are likely engaging in alcohol use and sexual risk behavior at a higher rate than the general youth population. Early intervention services would benefit them, their families, and society. We present interim findings from an ongoing, National Institute on Drug Abuse-funded, experimental, brief intervention (BI) study involving truant youths and their parent/guardians. Baseline, 3-, 6-, and 12-month follow-up data were analyzed to determine whether alcohol use and sexual risk behaviors were longitudinally related, to examine the effects of the BI on alcohol use and sexual risk behaviors, …

“It Is Silly To Hide Your Most Active Patrons”: Exploring User Participation Of Library Space Designs For Young Adults In The United States, Anthony Bernier, Mike Males, Collin Rickman

Faculty Publications

This article advances the first attempt to collect and examine empirical data on young adult (YA) spaces in public libraries from institutions across the United States by surveying current practices in new and renovated buildings. Analysis of an online survey of 257 library and information science (LIS) professionals produced an innovative Youth Participation Index (YPI) used to document the relative intensities of youth involvement in the design and execution of YA spaces. Libraries claiming higher levels of youth participation reported significant quality service improvements across a wide range of outcomes. However, after several decades of advocating for youth involvement in …

Can Explicit Instructions Reduce Expressions Of Implicit Bias? New Questions Following A Test Of A Specialized Jury Instruction, Jennifer K. Elek, Paula Hannaford-Agor

Faculty Publications

Judges, lawyers, and court staff have long recognized that explicit, or consciously endorsed, racial prejudices have no place in the American justice system. However, more subtle biases or prejudices can operate automatically, without awareness, intent, or conscious control. Members of the court community are beginning to identify this subtler form of racial bias, or implicit racial bias, as a partial explanation for persistent racial disparities in the criminal justice system. In the absence of empirically vetted interventions, some judges have created and currently use their own specialized jury instructions in hopes of minimizing expressions of such bias in juror judgment. …

From "War On Poverty" To Pro Bono: Access To Justice Remains Elusive For Too Many, Including Our Veterans, Patricia E. Roberts

Faculty Publications

Fifty years ago, President Lyndon B. Johnson launched the War on Poverty. The Legal Services Program of 1965, along with the Legal Services Corporation formed in 1974, considerably increased civil legal aid to America’s poor. Yet today, there is only one legal aid attorney for every 6,415 people living in poverty. Veterans, comprising 4.6%of those living in poverty, often suffer additional obstacles and extensive legal needs, including assistance in obtaining benefits to which they are entitled. While encouraging additional pro bono service among attorneys incrementally increases the availability of legal services to the poor, law school clinics across the country …

Icc Fugitives: The Need For Bespoke Solutions, Beth Van Schaack

Faculty Publications

It is axiomatic that the ICC depends on the cooperation of the international community, including state parties and non-party states alike, to carry out its mandate to prosecute the “most serious crimes of international concern.” Nowhere is this dependency more apparent than with respect to the imperative of gaining custody of the accused. Given the high degree of situational variation, strategies aimed at gaining custody of one fugitive will not necessarily be effective with others. As such, the international community — in coordination with the Court — needs to devise bespoke solutions. This paper discusses the particular circumstances of each …

Innocence Presumed: A New Analysis Of Innocence As A Constitutional Claim, Paige Kaneb

Faculty Publications

The Supreme Court has never resolved whether innocence is a freestanding constitutional claim. Many critics have mistakenly contended that the Court held in 1993 that innocence is not a federal constitutional claim. As a result, much of the literature has failed to recognize that the door for such claims remains open, or that relevant circumstances have changed and thus the constitutional analysis has changed as well.

In the past two decades, a consensus has emerged among states recognizing the right to judicial review of compelling claims of innocence. In the wake of DNA exonerations, the states reacted uniformly in providing …

The United States’ Position On The Extraterritorial Application Of Human Rights Obligations: Give It Up, Beth Van Schaack

Faculty Publications

The extraterritorial application of states’ human rights obligations has emerged as a pressing issue in international human rights law. And, it is destined to remain so given that states are increasingly asserting their power abroad in ways that affect the rights of individuals beyond national borders. As domestic courts, international tribunals, and human rights treaty bodies increasingly confront fact patterns and claims requiring a consideration of whether a particular human rights obligation applies extraterritorially, they have struggled to create a defensible and coherent framework of analysis. This process of doctrinal development and evolution has been decentralized to a certain degree …

2 Corinthians, David E. Fredrickson

Faculty Publications

No abstract provided.

The Special Tribunal For Lebanon: A Defense Perspective, Charles Chernor Jalloh

Faculty Publications

A fundamental aspect of United States criminal law is the presumption of innocence until proven guilty. A corollary right gives every American a Constitutional right to counsel or the right to represent herself in person if she so chooses. In international criminal law, similar fundamental rights are theoretically offered to accused persons under the statutes of the courts and under general international human rights law. However, unlike the U.S. criminal justice system, international criminal tribunals have generally failed to honor the lofty promises contained in their constitutive instruments. But it is not the principled lack of adherence to ensuring the …

Bus Ride To Justice: A Conversation With Fred Gray, Jonathan L. Entin

Faculty Publications

No abstract provided.

Dead Law Walking: The Surprising Tenacity Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This Article takes a statistical look at the state of federal sentencing roughly a decade after United States v. Booker, 543 U.S. 220 (2005), in which the U.S. Supreme Court declared the Federal Sentencing Guidelines constitutionally dead, and in its next breath resurrected them in advisory form. The Booker transformation has engendered endless procedural wrangles and has unquestionably altered thousands of individual sentencing outcomes. Yet, from the points of view of federal defendants in the mass and of the system that processes them from arrest to prison gate, perhaps the most surprising fact about Booker is how small an effect …

Zero Tolerance Policies: Criminalizing Childhood And Disenfranchising The Next Generation Of Citizens, S. David Mitchell

Faculty Publications

A juvenile adjudication of guilt has far more drastic consequences than existed just ten years ago ... Some of these consequences may not be apparent for a number of years, but their possibility should be anticipated, fully considered, and planned for, wherever possible. Under zero tolerance, students are suspended, expelled, or referred to juvenile authorities or some combination thereof for specified offenses. Zero tolerance policies punish students harshly regardless of the severity of the infraction, the existence of mitigating circumstances, or the context in which the conduct occurred. Part II discusses the origin and evolution of zero tolerance policies, as …

Been There Done That: With The Zimmerman Verdict, History Repeats Itself, Lori Latrice Martin

Faculty Publications

No abstract provided.

Trayvon Martin, Race, And American Justice: Writing Wrong, Kenneth J. Fasching-Varner, Lori L. Martin, Katrice A. Albert, Rema E. Reynolds

Faculty Publications

Trayvon Martin, Race, and "American Justice": Writing Wrong is the first comprehensive text to analyze not only the killing of Trayvon Martin, but the implications of this event for the state of race in the United States. Bringing together contributions from a variety of disciplines and approaches, this text pushes readers to answer the question: "In the wake of the killing of Trayvon Martin, and the acquittal of his killer, how post-racial can we claim to be?" This collection of short and powerful chapters is at times angering and at times hopeful, but always thought provoking, critical, and poignant. This …

Introduction: Writing Wrongs In Post-Racial American Justice, Kenneth J. Fasching-Varner, Lori L. Martin, Katrice A. Albert, Rema E. Reynolds

Faculty Publications

No abstract provided.

Incarceration's Incapacitative Shortcomings, Kevin Bennardo

Faculty Publications

No abstract provided.

Why State Prisons?, W. David Ball

Faculty Publications

The United States finds itself in an era where the cost of state prisons is both extremely large and politically salient. State prisons held approximately 1.3 million people in 2012, almost twice as many people as county jails and more than five times as many as federal prisons. The total cost of state corrections in2010 was $48.5 billion. In response, states nationwide are now experimenting with ways to reduce their role in imprisonment. The United States Department of Justice's Bureau of Justice Assistance launched the Justice Reinvestment Initiative to promote policies that reduce prison populations; the seventeen states that have …

Explanations Of A Violent Relationship: The Male Perpetrator’S Perspective, Jason B. Whiting Phd, Timothy G. Parker, Austin W. Houghtaling

Faculty Publications

The purpose of this study was to understand the way male perpetrators’ perceive and explain intimate partner violence (IPV) in their relationship. Specifically, men were invited to reflect upon their role in their relationship when violence exists, their contributions to the violence, and how they felt about it. Using coding procedures from grounded theory methodology, researchers analyzed data from 13 men who had been in violent relationships. Seven key themes were identified from 104 significant statements. These themes included justification, relapse, control, anger, emotional threshold, triggers, and remorse. Clinical implications as well as suggestions for future research are presented.